Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar, the Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand & Anor [2006] NSWCA 160

Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar, the Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand & Anor [2006] NSWCA 160

Legal professional privilege attaches to the legal opinion obtained by the trustee for the purpose of obtaining judicial advice under s 63 of the Trustee Act 1925 (NSW) and is not abrogated either by the rules of natural justice or by placing the opinion before the Court on a confidential basis. No waiver of privilege occurs merely by providing the opinion to the Court in accordance with usual practice and on a confidential basis, and the non-adversarial character of s 63 proceedings means persons served with notice are not entitled to access privileged material. The primary judge erred in permitting partial access absent waiver.

Parties
Claimant: Macedonian Orthodox Community Church St Petka Incorporated; First Opponent: His Eminence Petar, the Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand; Second Opponent: The Very Reverend Father Mitko Mitrev
Jurisdiction
Australia
Judgment Date
29 June 2006
Procedural Posture
Appeal / Leave to Appeal and Appeal Against Decision of Young CJ in Eq in the Supreme Court Equity Division
Outcome
Leave to appeal granted; appeal allowed; matter remitted to the Equity Division for determination; costs orders in favour of claimant.
Legal Topics
Judicial Advice to Trustees, Legal Professional Privilege, Waiver of Privilege, Natural Justice, Procedural Fairness
Trusts Civil Procedure Evidence Judicial Advice to Trustees Legal Professional Privilege Waiver of Privilege Natural Justice Procedural Fairness

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 33 Party arguments 2
Sign in to unlock

Parties

Macedonian Orthodox Community Church St Petka Incorporated

Claimant

His Eminence Petar, the Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand

First Opponent

The Very Reverend Father Mitko Mitrev

Second Opponent

Procedural Posture

Appeal / Leave to Appeal and Appeal Against Decision of Young CJ in Eq in the Supreme Court Equity Division

Legal Issues

  1. 1 Whether, in an application for judicial advice under s 63 of the Trustee Act 1925 (NSW), persons served under s 63(4) are entitled to access privileged legal opinion obtained by the trustee.
  2. 2 Whether legal professional privilege over the legal opinion was waived by the trustee submitting it to the Court.

Ratio Decidendi

Legal professional privilege attaches to the legal opinion obtained by the trustee for the purpose of obtaining judicial advice under s 63 of the Trustee Act 1925 (NSW) and is not abrogated either by the rules of natural justice or by placing the opinion before the Court on a confidential basis. No waiver of privilege occurs merely by providing the opinion to the Court in accordance with usual practice and on a confidential basis, and the non-adversarial character of s 63 proceedings means persons served with notice are not entitled to access privileged material. The primary judge erred in permitting partial access absent waiver.

Court Disposition

Leave to appeal granted; appeal allowed; matter remitted to the Equity Division for determination; costs orders in favour of claimant.

Orders

  • Grant leave to appeal.
  • Appeal allowed.